The Disconnected Logic of Child Support Enforcement Sanctions in Florida

Non-payment of child support could result in driver's license suspension or incarceration. Non-payment of child support could result in driver's license suspension or incarceration.

I wrote that twice to drive home the logical disconnect that statement implies. If the payor is blithely ignoring his (or her) responsibilities and has plenty of money to fulfill those obligations -- fine by me, take his license and lock him up! And, yes, it is usually a him, only sometimes a her, that is the payor.

The Florida Department of Revenue orders child support through an administrative process, and also enforces those orders. One of the problems is that the ordered amount is often not based on both parties' full financial information. The parents are frequently unwed and low income. A common scenario is that a young couple cohabits and has a child, then breaks up. The father may or may not be on the child's birth certificate. After the break up, the mother contacts the Department of Revenue (DOR) and requests assistance with child support. The father is personally served with a DOR complaint for child support. He frequently does not answer the complaint at all. Most of the time he appears at the hearing, believing that an order for timesharing will be rendered at the same time. The mother may have refused to let the father see the child unless he pays child support.

So the father goes to the hearing, willing to pay child support, and hoping to be able to see his child on a regular basis. At the hearing, the magistrate asks the father how much money he earns and requests to see his pay statements for the past three months. The mother's income is often not taken into account at all. The father is then ordered to pay child support based solely on those three months' income.

Frequently, no consideration is given to other factors such as which parent is paying for daycare or medical insurance for the child. The father asks, what about me seeing my child. The magistrate may tell him politely that this hearing is only about child support. Or the magistrate may tell him rather rudely that he needs to pay his child support and file for shared custody in family court. The father frequently does not realize that the DOR complaint for child support includes retroactive support for up to 24 months. The complaint may actually request retroactive support dating from the child's birth, despite the fact that per statute, only 24 months retroactive support may be ordered. If the father does not make an argument, he may be ordered to pay 24 month retroactive support even though he was living with the mother and the child up until the previous month and supporting all of them. It is not fair. And the father comes out of that hearing with his head spinning, having just been ordered to pay child support and without any order allowing him to see his child. And the father may automatically be several thousand dollars in debt because the retroactive support was ordered, he is below zero before he begins.

The father is given no information about how to go about obtaining an order for timesharing with his child. His wages are garnished for support. The mother may or may not let him see the child. The father seeing his child is solely depending on the mother's whim.

As time goes by, the father changes jobs, and the wage garnishment is not placed on his new job. The garnishment is supposed to be automatically put into effect on his new job, but the DOR is an absurdly inefficient entity, and that detail is routinely left undone. That detail, the DOR neglecting to put the income deduction into place on the payor's next job is often the beginning of a nightmare for the father.

The mother, not receiving anything on her child support debit card, contacts the DOR and requests enforcement. In theory, it isn't necessary for her to contact the DOR, they will enforce automatically ... but we've already seen how that goes. So she calls, and calls, and finally gets the DOR to begin enforcement. Child support orders processed through the Department of Revenue are called Title IV-D child support orders.

When a Florida court enters a Title IV-D child support order (or when such an order from another state is properly registered in Florida or a non-Title IV-D case is referred to the Florida Department of Revenue for enforcement), the Florida Department of Revenue can take a variety of steps and measures to encourage the obligor parent to pay the child support amount owed. Although generally the Florida Department of Revenue (DOR) attempts to secure voluntary compliance with Title IV-D orders, the DOR can take aggressive measures if other methods at securing voluntary payment have failed and/or if it is believed such measures will not be fruitful.

Measures that the DOR has taken to enforce child support can include:

• Mailing notices to the Payor informing him or her of the past-due obligations (this is usually the first step at attempting to secure voluntary compliance);

• Arranging a face-to-face meeting between the DOR and the Payor to attempt and negotiate a plan to resolve the outstanding child support obligation;

• Suspending the Payor's professional or business license(s), his or her hunting and/or fishing license, and/or the Payor’s driver’s license until he or she begins making payments and/or arranges to pay the past-due obligation;

• Denying the Payor's request to renew his or her passport;

• Garnishing/ levying bank accounts belonging to the Payor;

• Sending withholding orders to the Payor’s employer directing that employer to withhold a certain amount from the Payor’s paycheck and remit that amount directly to the DOR;

• Intercepting federal or state income tax refunds or intercepting Florida lottery winnings (if those winnings exceed $600);

• Deducting amounts owed for child support from state benefits like worker’s compensation benefits or reemployment benefits;

• Placing a lien on any motor vehicle and/or boat owned by the Payor;

• Reporting the delinquent child support obligation on the Payor’s credit reports; and/or

• Filing a lawsuit against the Payor. This lawsuit could result in the Payor being found in contempt of court. Such a finding can result in the Payor being incarcerated in jail until he or she pays the outstanding amount or makes acceptable arrangements to pay the amount.

The absurdity is real. All of the above measures, except for incarceration, are considered administrative sanctions to coerce the Payor into paying the child support that he owes; and assumes that the Payor has the ability to pay. The most used sanction by far is suspension of the Payor's driver's license. Most people depend on having transportation to stay employed. There are few parts of Florida where the public transportation is adequate so that a vehicle is not needed to get back and forth to work. Take away the license - take away the job. Or, for the desperate few, who will drive despite a having a suspended license, the risk of incarceration for driving on a suspended license is an everyday reality. How is the Payor supposed to pay when he is not able to maintain employment because he has no driver's license?

Incarceration is even more absurd. If its tough to pay child support with no driver's license, it is nearly impossibly while incarcerated. Without a money tree or a generous family member, the Payor continues to fall farther and farther behind. And the mother in all of this, the mother just wants child support, she does not necessarily want her baby daddy in jail, what good can come of that?

Two Mysteries of Florida Family Law Rules

In the course of doing business as a legal document preparer, my customers often ask me questions about procedure and why things are the way they are. I am allowed to provide consumers information regarding procedural rules, timelines, etc.; as long as I refrain from offering legal advice. Most people that contact me do not want legal advice anyway, they just don't know how to fill out the forms. And that's why we're here. The reason for this entire industry is that consumers either don't know how to prepare their own documents, don't have the time, or cannot possibly afford an attorney. A large part of the documents I prepare are family law documents, such as divorces, and supplemental petitions for modification of existing orders.

Mystery Number One:

If a couple is divorcing, they have no children, and they have already split all their assets, why does the State of Florida require a family law financial affidavit?

This is a basic divorce scenario where both parties want to go their separate ways, and have no disputes over anything. In the past couple of years, the requirement for a financial affidavit in a Simplified Dissolution of Marriage (which has never been so simple in my opinion - and I rarely have a request for these forms) changed so that divorcing couples using the simplified process can waive the financial affidavit requirement. However, the huge drawback for couples using the simplified process is that they both must appear in court. And, although, they may not have any disputes over property or children, they still may not want to be in the same room together ever again, and they may not be sure that the other party is going to be completely reliable, and if the other party doesn't show up, then there will be no divorce. And they will very likely have to pay another filing fee to get the divorce completed. So, many couples who qualify for the simplified process, use a petition for dissolution with no children and no property instead. That way, the more motivated party, can make sure he or she is the petitioner, and make sure that the divorce is completed, and the marriage is done and over, regardless of whether the other party cooperates or not. But, these couples are required to file a financial affidavit. Why? Customers ask me all the time. And my only answer is that the State of Florida says so, and beyond that I have no idea.

I recently helped a customer whose ex-husband to be lives in another country. No children, no assets, no debt. She sent him the divorce petition and an answer and waiver of appearance for him to sign. Which he did. But, when she tried to schedule a hearing, the clerk of court refused to schedule it because her husband had not filed a financial affidavit. And then the clerk of court directed her to file a motion to compel him to file a financial affidavit. Since he is in another country how can the State of Florida compel him to do anything? Sounds like a legal question, and I have no idea what the answer is. The bigger question is the central mystery here. Why is it the business of the State of Florida to know the financial information of a consumer, just because they are going through a divorce? If you know the answer, please comment.

Mystery Number Two:

This second mystery is much worse. Frequently, when unwed parents part company the mother (usually) files for child support through the Florida Department of Revenue. The father receives a notice in the mail that he must appear for the child support hearing and to bring all his pay stubs and proof of income. Many fathers are happy to go because they think that they can also request child visitation (timesharing) at the same hearing. Au contraire mon frere! However, most of the time these hearings are held before a General Magistrate, not a Judge. A General Magistrate also called a Hearing Officer is usually an attorney appointed by the Chief Judge to hear uncontested family law matters. So when the parties go in front of the General Magistrate, the court's assumption is that there is no dispute. The father owes child support, and that's the end of it. The General Magistrate is not allowed to hear any disputes, not allowed to hear anything related to child visitation, and the fathers come out of those hearings with their heads reeling. When the father tries to bring up child visitation or custody, the General Magistrate refuses to hear it. Most often the General Magistrate does not explain to the father why he can't hear it (because he's not allowed to); and doesn't tell the father what he can do to make sure that he has the legal right to see his own children and not be treated like an ATM.

Why does the State of Florida persist in allowing the fathers to be treated this way? If you know the answer as to the why, please comment.

There is a solution, however, and I truly hope this is helpful to someone. If you are caught in the situation described above: File a Petition to Determine Paternity and Related Relief; and a proposed Parenting Plan. The outcome will be an order naming you as the legal father, with the legal right to spend time with your children. The Parenting Plan is the schedule of visitation.

Civil Sanctions for Failure to Pay Child Support

Everyday in Florida parents are subject to civil sanctions for failure to pay court ordered child support. It is common that a General Magistrate or Circuit Court Judge will order sanctions despite the fact that the parent who has been ordered to pay is not able. Sanctions often include driver's license suspension or incarceration. The fact is, and the law is, that if a parent who is ordered to pay child support does not have the ability to pay -- sanctions cannot be imposed. The inability to pay child support is not contempt of court. Contempt of court, must be willful -- not unable. Read the following appellate case. It's not long, and not hard to follow, and it may just keep you driving and out of jail.

LARSEN v. LARSEN No. 4D04-773.

901 So.2d 327 (2005)

John Edward LARSEN, Appellant,
v.
Eva LARSEN, Appellee.

District Court of Appeal of Florida, Fourth District.

May 4, 2005.

WARNER, J.

Appellant challenges an order authorizing the suspension of his driver's license for nonpayment of child support with a purge provision of $2,500. He claims that he does not have the present ability to pay the purge amount. Because the suspension of a driver's license constitutes a civil sanction, the court must provide the contemnor with the opportunity to purge the sanction, and it must determine that the contemnor has the present ability to pay the purge amount. Gregory v. Rice, 727 So.2d 251, 253-54 (Fla.1999). Not only did the trial court fail to make such a finding, nothing in the record would support a finding that appellant has the ability to pay that amount. We therefore reverse. 

Appellant has accumulated substantial arrearages on alimony and child support obligations. He has instituted several modification proceedings since the dissolution of marriage, mainly because he lost his job as a pilot. In a mediated settlement in July 2002, the parties agreed to an arrearage, and appellant agreed that should he miss one payment, the Support Enforcement Division would be entitled to seek automatic suspension of his driver's license.

Subsequent to the agreement, appellant again moved for modification, and SED moved for contempt and sought to suspend appellant's license for nonpayment of support. The contempt motion was referred to a general master who recommended holding the father in contempt and requiring a purge amount of $1,638.25. The trial court adopted the general master's recommendations, and appellant filed a petition for writ of prohibition in this court, which we treated as a non-final appeal. We reversed the order of contempt, determining, in part, that the order lacked a finding that appellant had the present ability to comply with the purge amount, and failed to provide a factual basis for such finding as required by Florida Family Law Rule of Procedure 12.615(e). See Larsen v. Larsen, 854 So.2d 293 (Fla. 4th DCA 2003).

While his petition for modification was pending, appellant received notice of SED's intent to file for suspension pursuant to section 61.13016, Florida Statutes (2003), and moved for a case status conference as well as a hearing on his motion to contest the suspension. At the hearing, the court stated that the suspension of the driver's license was not a contempt sanction. The court denied appellant's objections to the impending suspension, but imposed a purge provision of $2,500. Upon receipt of the purge amount, SED was directed to abate the proceedings for license and motor vehicle registration suspension until further order of the court. Appellant's license was suspended after he failed to pay the purge amount.

Section 61.13016 provides that an obligor who has been given notice of the intent to suspend his or her driver's license may petition the court to contest the delinquency action. § 61.13016(1)(c)1.c. The obligor may contest the notice by showing a mistake of fact as to the delinquency or the obligor's identity. § 61.13016(3). The statute does not contain language excusing the suspension for inability to pay.

However, this case is controlled by expansive language¹ in Gregory v. Rice, 727 So.2d at 254:

Under Bagwell, regardless of whether the sanction is incarceration, garnishment of wages, additional employment, the filing of reports, additional fines, the delivery of certain assets, the revocation of a driver's license, or other type of sanction, the court must provide the contemnor with the ability to purge the contempt; that is, if the contemnor satisfies the underlying support obligation, the sanctions must be lifted.

(Emphasis added). Gregory also reconfirmed the principles of Bowen v. Bowen, 471 So.2d 1274 (Fla.1985), that the court must find a present ability to pay the purge amount in order to enter a civil sanction. 727 So.2d at 253-54.

Therefore, the sanction of driver's license suspension must be considered a contempt sanction under Gregory for which the court must find a present ability to pay any purge amount set. Here, the court made no such finding. Thus, the order authorizing the suspension must be reversed.

Appellee argues that appellant agreed to the automatic suspension of his license should he fall behind in support payments. However, no agreement was made as to the terms of any purge provision. Without a purge provision, the coercive sanction becomes a criminal contempt sanction, requiring the due process protections of a criminal proceeding. See Bowen, 471 So.2d at 1277.

We recognize that this opinion may cause considerable uncertainty in the use of driver's license and other license suspensions in child support proceedings without the setting of a purge amount in accordance with the dictates of Bowen. However, we are bound by the clear language of Gregory.

Reversed and remanded for further proceedings.

FARMER, C.J., and GROSS, J., concur.

FootNotes

1. The language is expansive because International Union v. Bagwell, 512 U.S. 821, 114 S.Ct. 2552, 129 L.Ed.2d 642 (1994), discusses only civil fines and incarceration. It never mentions other civil sanctions.

Baby Mama Drama? You can make it stop.

In theory there is no longer a social stigma for having children out outside of marriage. However, unwed fathers suffer more legal punishments than they could have ever imagined. If an unmarried couple with children breaks up, the father is often left out in the cold. Besides the general heartbreak of a relationship gone bad, the father is almost always separated from his children. And then, typically, the mother makes all of the parenting decisions by herself. If the mother truly has the best interests of the children in mind, she will allow the father to spend as much time as possible with the children so that the children are not needlessly traumatized by the separation.

It is a fact of modern life that sometimes relationships don't last, and quite often children are raised by a single parent. With the parents and extended family all working together to do the right thing for the children  -- children adjust.

Unfortunately, even despite good intentions, people do the wrong things. After a break up there is almost always hurt feelings between the couple, and they may forget their first priority is caring for their children. I hate to say, but it is often the mother who will keep the children from the father for capricious reasons. I also hate to say that the fathers may resent the break up and make only minimal efforts to stay in touch with their children.

After the break up things may go along this way with no court intervention and little constructive guidance. The mother may grow resentful at the expense of raising children without the father's financial support, and disallow visits unless he pays. The father often feels that the money that he gives the mother for child support is not being spent on the children anyway, so why bother?

Out of frustration or disdain the mother may seek financial help from the government. She might apply for medicaid for the children; food stamps; and cash assistance. During the application process the mother must disclose the identity of the father. Since there is no court order for child support the government will set about putting a court order in place. The government entity in Florida which is designated to collect and enforce child support is the Florida Department of Revenue (DOR).

There is a court hearing of sorts -- sometimes. Some fathers only receive a notice in the mail and never have a say at all. When there is a DOR Administrative hearing it is in front of a General Magistrate who is appointed to hear uncontested family law matters. A General Magistrate is an attorney appointed by the Chief Judge, and has not been elected. Since it is the business of the General Magistrate to hear only uncontested family law matters, no argument is allowed. If the father brings up the fact that the mother is not allowing him to see his children at all, the General Magistrate does nothing. This hearing is not for the purpose of visitation or timesharing -- only child support. The father is told to hire an attorney if he wants to see his children. Now the father is doubly confused and frustrated. He thought he was coming to court to have a chance to set up visitation, and finds out that all they want is his money.

The father may contact attorneys for help. He is again frustrated when he discovers that he needs to pay a $1500 - $3000 retainer and then they'll see what they can do. For many, this amount, in addition to the child support ordered is out of reach, an impossibility. At this point, he may give up altogether, and hope and pray that he can get along with the mother well enough that she will allow him to see his kids. Sometimes this works for a while -- sometimes this arrangement lasts years.

When and if this arrangement unravels, the father is again left out in the cold. Many fathers find themselves faithfully paying support and have no contact whatsoever with their children. The government, the courts, and the Department of Revenue, specifically do nothing to alleviate the pain. The children are often deprived of contact with their fathers for no reason other than the father does not know what he can legally do to gain access to his children; and the father cannot afford an attorney. The guidelines for all of the legal aid societies throughout the state are so narrow that it is nearly impossible for a father in this situation to get any free or low cost legal assistance.

Finally out of desperation the father searches for an answer. Sometimes he has lost his job, and knows that he may go to jail if he cannot pay his support. Other times there is a new man in his ex's life and access to his children has been sharply curtailed. Or the mother has applied for an increase in child support. After asking everyone he knows, and multiple internet searches he finds the answer.

The form that is central to his goal is called: Petition to Determine Paternity and Related Relief. The name of the form is so confusing and deceiving, he would never have thought of looking for something with that name. That form and other family law forms are available as free downloads on the Florida Supreme Court's website. Once the father has an order from a judge, naming him as the legal father, he can exercise his paternal rights. He will no longer be at the will of a capricious ex-girlfriend. He can see his children and become involved with their lives without fear that the mother will change her mind at the last minute, and deny him.

The name of the form is so counter intuitive that often even when fathers find the form, or are told of the process skepticism remains. A father may well wonder why he should petition for paternity when there is no question of his paternity. He often wonders whether a DNA test is required. He knows his name is on the birth certificate and he is paying child support so why would he need to petition for paternity? All good questions, and we don't know all the answers. We don't know why they named the form or the process something so obscure. Only if the mother disputes paternity will a DNA test be needed.

The easiest way to understand what the form and procedure is all about is: Petition to Determine Paternity and Related Relief is like a divorce for people who were never married and had a child together. The outcome is a court order stating that the father is the legal father. A Parenting Plan, the schedule of visitation, is usually filed along with these documents.

Florida legal document preparers can help pro se litigants prepare these forms. Or pro se litigants can do it completely by themselves.

Child Support

Child support is one of the most critical and divisive issues among divorced parents. Particularly during these difficult economic times, child support can be a huge financial burden even for parents who love and cherish their children. It is well settled law throughout the United States that both parents are obligated to provide for their children. Every state has a slightly different method for calculating child support. In some states child support is calculated on a case by case basis decided by the judge. In other states there are guidelines, worksheets, and formulas that must be strictly applied.

The federal law that is used to enforce child support is called the Uniform Interstate Family Support Act (UIFSA). This is often referred to as a long arm statute, where one state can enforce a court order in another jurisdiction. For example, if a child support order is entered in Florida, it can be enforced in Georgia or any other state through UIFSA. Under the federal law, each state is required to recognize another state's child support order. It isn't necessary to formally transfer jurisdiction of the family law case to the other state for the other state to enforce it. However, in order to modify child support a state must accept Continuing Exclusive Jurisdiction (CEJ). The CEJ usually follows the child's residency. The state that will accept jurisdiction is usually the state where the child has resided for at least six months immediately prior to filing the petition to modify child support.

Methods of Enforcement

Different states have different methods of enforcement. Among others, sanctions and enforcement methods may include: income tax refund capture; bank account levy; driver's license suspension; and passport denial or revocation. In many parts of the United States, loss of liberty is a very real possibility for anyone who refuses to pay child support. A finding of civil contempt can land a non-payor in jail until he or she comes up with at least a portion of child support arrears. This portion is often called a “purge” and is often 25% of the total amount owed, but can be any amount a judge decides is required.

In addition to state remedies for refusal to pay child support there is also a federal remedy. According to this federal law, failure to pay child support, if willful, is a crime when the parent owing support lives in a different state than the parent who is supposed to receive the support. The purpose of the Federal Child Support Recovery Act was to prevent a parent from moving to a different state or a foreign jurisdiction to avoid paying child support.

The penalties available for child support enforcement under the Child Support Recovery Act include prison sentences, fines and restitution. A first offense under the Federal Child Support Recovery Act can result in a prison sentence of up to six months plus fines. A second conviction can result in more jail time and greater fines. Probation can be imposed and can include conditions such as the payment of child support and mandatory employment. A violation of those probation conditions can result in additional prison time.

Controversies

It is easy to accept that as a matter of public policy, parents should support their children. But what if a parent is ordered to pay child support, but is not able to pay? And, even though child visitation and child support is supposed to be separate, what if the parent obligated to pay support is prevented from seeing the child? Do the penalties for nonpayment do anything to help the children in the long run? How does putting daddy or mommy in jail help? What about the unwed father who never wanted to have the child to begin with? Or worse, what about the unwed father who never knew he even was a father until he was served with a complaint for child support?

As always your comments are welcome. Thank you for reading.